To vaccinate or not to vaccinate: a COVID-19 conundrum for separated parents

By Christopher Ragozzino & Amy Bush

The COVID-19 pandemic has profoundly changed our lives over the last few years, from lockdowns to mask rules, and now vaccinations.

The Federal Circuit and Family Court of Australia is increasingly being asked to determine disputes regarding COVID-19 vaccination for children. The fundamental question posted in these cases, and others involving medical treatment more broadly, is whether it is in the best interests of the child for the vaccination (or medical treatment) to be ordered.

Overwhelmingly the court is making decisions in favour of the parent seeking to have a child vaccinated against COVID-19. This may result in an order permitting a parent to vaccinate a child against COVID-19. Alternatively, the court may make an order for the parent seeking vaccination to have sole parental responsibility for the child, either specifically in relation to vaccination, or medical issues more broadly.

While there is no single factor which is determinative in vaccination cases, evidence from a relevantly qualified expert is proving to the most persuasive. By way of recent examples:

1. In Palange & Kalhoun [2022] FedCFamC2F the mother relied upon evidence of a public health researcher specialising in vaccination, who gave evidence that the risks associated with infection far outweighed the risks of vaccination. The father did not file any expert evidence and his own opinions of the perceived risks of vaccination were not accepted by the court. The court made orders for the child to be vaccinated.
2. In Gable & Pasley [2021] FedCFamC2F 79 the mother produced evidence from the children’s treating general practitioner. The general practitioner indicated the eldest child, aged 17, was able to make a decision to proceed with    vaccination of her own accord. As to the younger children, the general practitioner gave evidence they had no medical conditions which would be a contraindication to having the COVID-19 vaccination. The court found the father did not have the expertise to express an opinion about the extent or data regarding the adverse effects of COVID-19 vaccination on children. An order was made for the mother to have sole parental responsibility.

Where expert evidence is not available, the court may choose to rely upon public health advice (Makinen & Taube [2021] FCCA 1878).

It is important to seek advice early when disputes arise about COVID-19 vaccination. The team at Kennedy Partners are able to discuss your situation and available options.